THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1894 of 2007 Date:21.01.2014 Between:
Dasari Chinnamanaidu . Petitioner.
AND Veeravalli Satyanarayana and The State of Andhra Pradesh, rep by its Public Prosecutor, High Court of A.P., Hyderabad.
. Respondents.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1894 of 2007 JUDGMENT:
This revision is preferred against judgment dated 02-12-2006 in C.C.No.458 of 2006 on the file of Judicial Magistrate of First Class, Special Mobile Court, West Godavari at Eluru.
2. The brief facts leading to filing of this revision are as follows:-
The revision petitioner herein filed complaint before trial Court alleging that the 1st respondent herein borrowed a sum of Rs.80,000/- from him and executed a promissory note promising to repay the same with interest at 24% per annum and on repeated request, he issued a cheque bearing No.172937 for Rs.50,000/- towards part satisfaction of the debt. When the said cheaque was presented before Andhra Bank, Ashok Nagar Branch, Eluru for collection, the same was returned with an endorsement ‘insufficient funds’ and that he issued legal notice dated 17-02-2005 to the accused, but having received notice on 17-02-3005, accused neither choose to make any payment nor to give any reply notice, therefore, 1st respondent herein has committed an offence under Section 138 of Negotiable Instruments Act (herein after referred to as ‘138 of N.I Act’). The learned Magistrate took the complaint on file and during trial, examined two witnesses and marked five documents on behalf of complainant and no documents were marked on behalf of accused. On a over all consideration of oral and documentary evidence, the learned Magistrate found the 1st respondent herein guilty for the offence under Section 138 of N.I Act and sentenced him to pay a fine of Rs.3,000/- and in default to undergo simple imprisonment for three months and out of the said fine amount, an amount of Rs.2,000/- was awarded as compensation under Section 357 Cr.P.C to the complainant. Now not satisfied with the quantum of sentence, complainant preferred the present revision.
3. Heard both sides.
4. It is the contention of the revision petitioner that the trial Court having found the 1st respondent guilty for the offence under Section 138 of N.I Act did not impose sufficient sentence. Advocate for revision petitioner contended that when the cheque amount is about Rs.80,000/- imposing fine of Rs.3,000/- is grossly inadequate and that the trial Court has not properly exercised it’s judicial discretion.
He submitted that the judgment of the trial Court has to be set aside to the extent of sentence. On the other hand, Advocate for 1st respondent contended that there is no minimum sentence prescribed for the offence under Section 138 of N.I Act. He contended that the offence under Section 138 of N.I Act is punishable with imprisonment for a term, which may extend to one year, or with fine which may extend to twice the amount of the cheque or with both and the trial Court, after considering the representation of the accused, imposed fine only and therefore, there are no grounds to interfere with the order of the trial Judge.
5. Now the point that would arise for my consideration is whether the Judgment of the Court below is legal, proper and correct?
6. Point:- According to revision petitioner, the 1st respondent herein borrowed a sum of Rs.80,000/- from him and executed Ex.P1-promissory note agreeing to repay the same with interest at the rate of 24% per annum and when he insisted to discharge the debt, 1st respondent issued cheque-Ex.P2 for Rs.50,000/- towards part discharge of the debt and when the said cheque was presented before Andhra Bank, Ashok Nagar Branch, Eluru for collection, the same was dishonoured for want of sufficient funds. The defence of the 1st respondent before the trial Court is that the complainant does money lending business and in the course of business, he has obtained two blank singed pronotes and two blank signed cheques from the accused and one such cheque is fabricated and false complaint was filed. The trial Court, after appreciating the evidence on record, disbelieved the version of the accused and found him guilty for the offence under Section 138 of N.I Act. There is no appeal or revision challenging the conviction. Now the only point in dispute is with regard to quantum of sentence. According to revision petitioner, the sentence imposed against the 1st respondent herein is not sufficient. On the other hand, it is the contention of 1st respondent that the trial Court exercised it’s discretion judiciously while taking into consideration the financial status and background of the family of the 1st respondent.
7. Learned Advocate for revision petitioner relied on a decision of this Court reported in Krutti Venkata Appa Rao v.
[1]
Kaki Uma Shankara Rao and another , wherein it was observed as follows:-
“Chapter XVII of the Negotiable Instruments Act was introduced with an object of curbing the practice of indiscriminate issuance of cheques, without making necessary arrangements. The offence under that Section cannot be equated with those under the IPC. If a person held guilty of the offence under Section 138 of the Act is let off by imposing a fine of paltry amount, it virtually amounts to putting a premium on their misdeeds. The offences under Chapter XVII of the Act, are the best instances, where the discretion under sub-section (3) of Section 357 Cr.P.C be exercised. The Trial Court ought to have either imposed the sentence of imprisonment or ordered payment of compensation. This Court feels that the order of the Trial Court does not confirm to the letter and spirit of the provisions of the Negotiable Instruments Act and Cr.PC.”
Referring to the above observation, the Advocate for revision petitioner contended that sentence imposed by the trial Court is not legal. On the other hand, Advocate for 1st respondent submitted that under the facts and circumstances of that case, the Court observed that trial Court ought to have exercised it’s discretion under sub-section (3) of Section 357 Cr.P.C and for that reason remitted back the matter to the Court below for fresh consideration, but nowhere it is held in that decision that the Court must impose imprisonment for the offences under Section 138 of N.I Act. He submitted that when the statute has not provided any minimum sentence and it is for the convicting Court to exercise judicial description and this Court under the revisional powers can only interfere if there is any wrong exercise of judicial discretion.
8. Advocate for revision petitioner also relied on a decision of the Supreme Court reported in Suganthi Suresh Kumar v.
Jagdeeshan
[2]
. In that case, the cheque amount is about Rs.4,50,000/- and the trial Court imposed a fine of Rs.5,000/- only with an imprisonment till raising of the Court, which was found as inadequate by the Hon’ble Supreme Court.
9. Advocate for 1st respondent in reply to the above decision contended that the facts of this case are entirely different and in this case cheque amount is Rs.80,000/- and the fine imposed is Rs.3,000/- and the 1st respondent herein is working as an employee in Municipality and civil suit is filed for the amount due and decree is also passed on a consideration of all these aspects, the trial Court imposed fine only which is quite reasonable and therefore, the decision relied on by Advocate for revision petitioner has no application. On a scrutiny of the material on record, I have to accept the argument of the learned counsel for 1st respondent that the trial Judge exercised his discretion judiciously and there is no perversity or impropriety in exercise of judicial discretion.
10. Admittedly, no minimum sentence is prescribed for the offence under Section 138 of N.I Act, and the offence under Section 138 of N.I Act is punishable with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque or with both as per the amended provision. When the discretion is given to the Court either to impose imprisonment or fine or with both without prescribing any minimum sentence, the trial Court has every power to exercise it’s judicial discretion. As rightly pointed out by the learned counsel for 1st respondent if any wrong exercise of judicial discretion is noticed, then only reivsional Court can interfere. Hence trial Judge gave reasons for imposing fine only. On a perusal of the order of the trial Court, I am of the view that the learned trial Judge has not committed any error and there is no wrong exercise of judicial discretion.
11. For these reasons, I am of the view that the trial Court has not committed any error or illegality while exercising it’s judicial discretion while sentencing the 1st respondent for the offence under Section 138 of N.I Act. Therefore, it is held that there are no grounds to interfere with the order of the trial Court and that the revision is liable to be dismissed as devoid of merits.
12. In the result, the Criminal Revision Case is dismissed.
13. As a sequel, miscellaneous petitions if any pending in this Criminal Revision Case shall stand dismissed.
Date:21.01.2014 mrb
JUSTICE S. RAVI KUMAR
[1]
2003 (1) ALD (Crl.) 822 (AP)
[2] 2002 (1) ALD (Crl.) 417